Citation Nr: 1034802
Decision Date: 09/15/10 Archive Date: 09/21/10
DOCKET NO. 10-04 096A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New
York
THE ISSUES
1. Entitlement to service connection for complex regional pain
syndrome.
2. Entitlement to service connection for posttraumatic stress
disorder (PTSD).
3. Entitlement to service connection for depression.
4. Entitlement to a total rating based on individual
unemployability due to service-connected disabilities (TDIU).
5. Entitlement to special monthly compensation (SMC).
(The issues of entitlement to increased ratings for right and
left knee disabilities are the subjects of a separate decision of
the Board of Veterans' Appeals (Board).)
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. R. Fletcher, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty training
(ADT) from January 1989 to May 1989 and on active service from
November 1989 to May 1992.
These matters are before the Board on appeal from March 2006,
February 2009 and July 2009 rating decisions by the Buffalo, New
York Regional Office (RO) of the Department of Veterans Affairs
(VA).
The appeal is REMANDED to the RO. (Because the issues of a
separate decision of the Board which are being remanded to
the RO are inextricably intertwined with the issues
addressed herein, this case is not to be sent to the
Appeals Management Center (AMC), in Washington, DC.) VA
will notify the appellant if further action on her part is
required.
REMAND
Complex Regional Pain Syndrome
Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the
remand orders of the Board are not complied with, the Board errs
as a matter of law when it fails to ensure compliance.
Therefore, further development is necessary before the Board can
adjudicate this claim on appeal.
In a November 2007 decision, the United States Court of Appeals
for Veterans Claims (Court) specifically noted that the issue of
entitlement to service connection for complex regional pain
syndrome should be considered in the first instance. In its
March 2008 Remand, the Board instructed the RO/AMC (in pertinent
part) to arrange for the Veteran to be examined by an appropriate
physician to determine whether there is at least a 50 percent
probability or greater (at least as likely as not) that she has
complex regional pain syndrome as a result of an injury or
disease incurred or aggravated during active service. The
Veteran underwent VA orthopedic examinations in September 2008
and November 2009 conducted by a physician's assistant (PA-C). A
physician did not review or sign either report.
According to M21-1MR, Part III, Subpart IV, Chapter 3, Section D
18(a), an examination report must be reviewed and signed by a
medical doctor when an examination has been conducted by a
physician assistant or nurse practitioner.
A medical professional is not competent to offer an opinion as to
matters outside the scope of his experience. Layno v. Brown, 6
Vet. App. 465, 469 (1994). A physician is an authorized
practitioner of medicine, while a PA-C has been trained and
certified to provide certain of a physician's duties, "all under
the responsible supervision of a licensed physician." Dorland's
Illustrated Medical Dictionary 1434 (30th ed. 2003).
In general, the Board is of the opinion that a PA-C is competent
to evaluate the likely presence and etiology of complex regional
pain syndrome, the opinion of which was based on clinical
findings. See Cox v. Nicholson, 20 Vet. App. 563 (2007) (noting
that there is no requirement that medical examinations be
conducted by physicians only, and that the issue involves whether
the individual has the types of education and clinical training
to evaluate the medical issue at hand). In this case, however,
because the March 2008 Remand order indicated that a physician
should review the Veteran's claims file and render the opinion,
it was in violation of the prior Remand for the RO/AMC to
schedule the examination with a PA-C. See Stegall, supra.
(CONTINUED ON NEXT PAGE)
PTSD
The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the
regulations implementing it apply in the instant case. With
regard to the claim of service connection for PTSD, the Board is
of the opinion that further development of the record is required
to comply with VA's duty to notify.
The Veteran's service treatment records (STRs) were associated
with the claims folder in November 2001. They appear to be
incomplete. A search for additional records should be undertaken
by the RO.
The Veteran is claiming that she has PTSD secondary to personal
assault in service. Specifically, the Veteran alleges that she
suffers from PTSD as a result of a sexual assault by a military
supply specialist (whose name she could not remember) at Ft. Drum
at sometime in 1991. The Veteran's lay testimony alone is not
enough to establish the occurrence of the alleged stressor. See
Moreau v. Brown, 9 Vet. App. 389, 395 (1996).
Under 38 C.F.R. § 3.304(f)(4), if a PTSD claim is based on an in-
service personal assault, evidence from sources other than the
Veteran's service records may corroborate her accounts of the
stressor incident. Moreover, in Patton v. West, 12 Vet. App.
272, 278 (1999), the United States Court of Appeals for Veterans
Claims (Court) specified that there are special evidentiary
procedures for PTSD claims based on personal assault. See VA
ADJUDICATION MANUAL M21-1MR, Part IV, subpart ii.1.D.17. Because
personal trauma is an extremely personal and sensitive issue,
many incidents of personal trauma are not officially reported,
and the victims of this type of in-service trauma may find it
difficult to produce evidence to support the occurrence of the
stressor. It is often necessary to seek alternative evidence.
Id. Examples of such evidence include, but are not limited to,
records from law enforcement authorities, hospitals, or
physicians; copies of personal diaries, journals, or letters
written contemporary to the claimed in-service events; and
statements from family members, roommates, fellow service
members, or clergy. The types of evidence that may be considered
to substantiate a claim of service connection for PTSD based on
personal assault under 38 C.F.R. § 3.304(f)(4), was not provided
in the VCAA letter of October 2005. This defect should be cured
on remand.
Depression
Service connection may be granted for disability which is
proximately due to or the result of service- connected
disability. 38 C.F.R. § 3.310(a). In addition, service
connection may be established on a secondary basis for a
disability which is aggravated by a service-connected disability.
See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
However, the veteran may only be compensated for the degree of
disability over and above the degree existing prior to the
aggravation. Id. Temporary or intermittent flare-ups of
symptoms of a condition, alone, do not constitute sufficient
evidence of aggravation unless the underlying condition worsened.
Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002);
Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In the case at
hand, the Board finds that there are no etiology opinions of
record that are adequate for adjudication purposes. The medical
evidence of record shows that the Veteran has been treated for
depression. The Board notes that the Veteran has not been
scheduled for a VA examination to determine whether she currently
has depression that was caused or aggravated (in light of
Allen, supra) by her service-connected knee disabilities. [The
record includes an April 2007 VA medical opinion indicating that
it could not be differentially determined if the Veteran's
depression, "a symptom of PTSD, is also related to her knee
condition." This opinion is not adequate for adjudication
purposes.] Since the matter before the Board involves a question
that is primarily medical in nature, a VA examination to answer
the medical question remaining is necessary. See 38 U.S.C.A. §
5103A.
TDIU and SMC
The Board notes that further development and adjudication of the
Veteran's claims for increased ratings for right and left knee
disabilities (the subjects of a separate Board decision) may
provide evidence in support of her claim for TDIU. Moreover,
further development and adjudication of the Veteran's claims for
service connection may provide evidence in support of her claim
for SMC. Action on these claims will be deferred pending
resolution of the claims for increased rating and service
connection. See Henderson v. West, 12 Vet. App. 11 (1998),
citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the
proposition that where a decision on one issue would have a
"significant impact" upon another, and that impact in turn could
render any review of the decision on the other claim meaningless
and a waste of appellate resources, the claims are inextricably
intertwined.
Despite the lengthy procedural history of this claim, corrective
action is required. Accordingly, the case is REMANDED for the
following action:
1. The RO should issue a letter to the
Veteran informing her of the provisions of
38 C.F.R. § 3.304(f)(4) describing the
evidence that may be submitted to establish
the occurrence of the alleged in-service
personal assault. Specifically, she should
be advised of the various ways in which
personal assault may be corroborated. Such
alternative forms of evidence include, but
are not limited to: behavior and/or
performance changes; records from law
enforcement authorities, mental health
counseling centers, hospitals, or
physicians; statements from family members,
fellow service members, or clergy;
deterioration in work performance;
substance abuse; episodes of depression,
panic attacks, or anxiety without an
identifiable cause; or unexplained economic
or social behavior changes.
2. The RO should make another attempt to
secure the Veteran's service treatment
records through official channels.
3. The RO is to arrange for the Veteran to
undergo a VA orthopedic examination by a
physician to determine the whether she
suffers from complex regional pain syndrome
that is attributable to service or is
caused or aggravated by service-connected
disabilities. The Veteran's claims folder
must be made available to the physician
for review in this case. A notation to the
effect that this record review took place
should be included in the report of the
examiner.
All indicated tests and studies are to be
performed, and a comprehensive recreational
and occupational history is to be obtained.
All medical findings are to be reported in
detail. The examination must be conducted
following the protocol in VA's Disability
Examination Worksheet for Joints, revised
on December 9, 2009. The physician is to
provide a full description of the effects
of the service-connected disabilities upon
the Veteran's employment and daily life.
The physician should indicate whether the
Veteran suffers from complex regional pain
syndrome that is attributable to service or
is caused or aggravated by service-
connected disabilities. The complete
examination findings, along with the
complete rationale for all opinions
expressed, should be clearly set forth in
the examination report.
4. The RO should arrange for the Veteran
to be examined by a VA psychiatrist to
determine the nature and likely etiology of
her depression. The psychiatrist must
review the Veteran's claims file in
conjunction with the examination. The
physician should provide an opinion
regarding the following:
Is it at least as likely as not (i.e., a 50
percent or better probability) that the
Veteran's current depression had its onset
in, or is otherwise related to, her
military service?
Is it at least as likely as not (50 percent
or better probability) that the Veteran's
depression was caused or aggravated (i.e.,
chronically worsened) by her service-
connected knee disabilities. If the
examiner finds that the Veteran's
depression was not caused, but was
aggravated by her service-connected knee
disabilities, the examiner should report
the baseline level of severity of the
depression prior to the onset of
aggravation, or by the earliest medical
evidence created at any time between the
onset of aggravation and the receipt of
medical evidence establishing the current
level of severity. If some of the increase
in severity of the depression is due to
natural progress, the examiner should
indicate the degree of such increase in
severity due to natural progression. See
generally 38 C.F.R. § 3.310(b) (effective
October 10, 2006).
The examiner should explain the rationale
for all opinions provided.
5. The Veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications, including the address where
the notice was sent must be associated with
the claims folder. The Veteran is to be
advised that failure to report for a
scheduled VA examination without good cause
shown may have adverse effects on her
claim.
6. Thereafter, the RO/AMC should undertake
any other development it determines to be
warranted, to include obtaining any medical
records and/or opinions deemed necessary.
7. The RO should then readjudicate the
matters remaining on appeal. If the
benefits sought on appeal remain denied,
the RO should issue an appropriate
supplemental statement of the case and
afford the Veteran and her representative
the opportunity to respond. Then the case
should then be returned to the Board for
further appellate consideration, if
otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matters that the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must
be afforded expeditious treatment. The law requires that all
claims that are remanded by the Board for additional development
or other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).